Supreme Court to hear appeal of prostitution law; brothel ban stays for now

Natalie Stechyson, Postmedia News10.24.2012

The Supreme Court of Canada is willing to take a look at the country's main laws controlling prostitution. In this photo: A German prostitute, called Eve, waits for clients behind her window in the red light district of Amsterdam.

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OTTAWA — Canada’s top court has announced it will review a lower-court decision that gave Ontario’s sex workers the legal right to work in brothels and hire bodyguards and drivers. The development is important because the Supreme Court of Canada’s final ruling will apply across the country.

The court said on Thursday it will hear an appeal of a lower-court ruling last March that said some of the country’s anti-prostitution rules placed unconstitutional restrictions on prostitutes’ ability to protect themselves.

At the same time, the court will also hear a cross-appeal by three former and current sex workers who argue that the law against public solicitation is also unconstitutional.

Canada’s sex workers are “delighted” that the court will hear the cross-appeal and that the ultimate decision will apply beyond just Ontario, said Nikki Thomas, the executive director of the Sex Professionals of Canada and a Toronto-based escort.

“The fact that sex workers in general and street-based sex workers in particular are disproportionately targeted for violence speaks to the fact that the laws on the books have done nothing but make our job less safe,” Thomas said.

“This provides us with the best possible means of having our voices heard in the highest court in the land and, based on what the Ontario Court of Appeal has already stated, we are optimistic that they will take a rational approach.”

The decision by the Ontario Court of Appeal earlier this year allowed sex workers in Ontario to hire drivers, bodyguards and support staff, and to work indoors in organized brothels, or “bawdy houses,” to make their work safer.

Soliciting customers in a public place, which the court saw as a “reasonable limit on the right to freedom of expression,” remained illegal. But not allowing this basic communication with a potential client removes the “critical distance” needed to determine if that person is a threat, Thomas said.

The law that banned living “wholly or in part on the avails of prostitution of another person” was amended to include “in circumstances of exploitation.” The cross-appeal will seek clarity on what “exploitation” means, Thomas said, arguing that the wording is too vague.

“The removal of these laws will give us the additional means to provide the accountability that we need to keep ourselves safe,” Thomas said.

The federal government applied for leave to appeal to the Supreme Court on May 25, according to court documents. And the respondents — former and current sex workers Terri-Jean Bedford, Amy Lebovitch and Valerie Scott — applied for the cross-appeal a month later.

Justice Minister Rob Nicholson said in April that the federal government believes the Criminal Code provisions on prostitution are “constitutionally sound.”

“It is important to clarify the constitutionality of the law and remove the uncertainty this decision has created,” Nicholson said at the time.

“The Criminal Code provisions denounce and deter the most harmful and public aspects of prostitution.”

The Ontario court’s previous decision will be stayed until the court hands down a judgment in the appeal and cross-appeal, the Supreme Court said Thursday.